Monday, December 30, 2013

More than 2.5 million Syrians have fled their home country in the bloody civil war that is now nearing its third-year anniversary. These refugees, including more than 1 million children, constitute the world’s worst humanitarian crisis in a generation, but it is only one of several protracted challenges for the United Nations and private international relief organizations. Hundreds of thousands of Africans have also fled from conflicts in South Sudan, the Central African Republic, the Democratic Republic of Congo, and Nigeria. All told, there are now more than 10 million refugees worldwide, most of them housed and fed in camps meant to be temporary but over time more akin to permanent settlements. These refugees benefit from a legal regime established after World War II. In history’s world-ever humanitarian crisis, Europe had more than 6 million displaced persons on a continent with its infrastructure ruined and its political institutions broken down. Under U.N. auspices, the nations of the world agreed in 1951 on a treaty, the Convention on the Status of Refugees, that provided for recognition of refugees and protected them from forced repatriation to their home countries. The treaty was initially limited to Europe, but in 1967 a second treaty  the Protocol on the Status of Refugees  allowed for expanded coverage to refugees worldwide. More than 140 countries, including the United States, are now parties to the 1967 treaty. As important as the treaties’ life-saving protections may be, however, they are less than a complete solution for refugees, according to a leading U.S. expert and ranking United Nations official. As Alex Aleinikoff explained in a lecture at Georgetown Law School in late November, most of the refugees cannot return to their home countries, will not be integrated by their host countries, and will not be accepted by other countries. “Nonsolutions have become the norm,” said Aleinikoff, the school’s former dean and now the U.N. deputy high commissioner for refugees. The Syrian refugee crisis as well as the others have gained the world’s sympathetic attention. Print, photo, and TV journalists have visited the camps and brought back moving stories of people uprooted by conflicts, like this multipart package on Syrian refugees published in The Washington Post earlier this month [Dec. 15]. Readers and viewers moved by the emotional impact of these accounts, however, can easily overlook the longer term challenge that the refugees present. As senior correspondent Kevin Sullivan writes, the refugee camps “increasingly look like permanent cities” with “thousands of children” being born in makeshift maternity wards. Jordan’s Zatari refugee camp, with 120,000 people, is now that country’s fourth largest city, Sullivan notes. In his lecture, Aleinikoff noted that the Dadaab refugee camp in Kenya, with more than 450,000 residents, now ranks as that country’s third largest city. Aleinikoff rightly emphasizes the successes of the current legal protections for refugees. Immediately after World War II, millions of Russian refugees were repatriated to the Soviet Union, many of them sent to long-term imprisonment or death in the Siberian gulags. The 1951 treaty formalized the international law principle against forced repatriation known by the French term nonrefoulement. “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social or political opinion,” the treaty states. Along with the principle of nonrefoulement, the treaty provides for recognition of refugee status, minimum conditions for treatment of refugees, burden sharing among nations, and monitoring of refugees’ treatment. But, as Aleinikoff noted, the treaty guarantees those rights only to those who meet its definition of refugee, which does not include those who flee from poverty or generalized violence. Even those who qualify as refugees, however, have only limited rights. Refugees have no right to work and no right to move, Aleinikoff notes. Those limitations, he observes, may be the price that refugee advocates have to pay for host countries’ open borders. And despite the best efforts hundreds of thousands of refugee children are not being schooled. Even though more refugees are receiving assistance than ever before, “no one believes that our current system of care and maintenance is ideal,” Aleinikoff says. Kept in “refugee dependency” for what is now an average tenure of 17 years, hundreds of thousands of refugees are simply “forgotten persons,” he says. Aleinikoff’s discussion indicates that solutions require not only more money but also political will and creative thinking. Countries outside the affected regions must be willing to accept more refugees to ease the burdens on neighboring host countries. As Sullivan noted, Lebanon has absorbed 1.6 million Syrian refugees, more than one-third of its prewar population of 4.4 million. In this regard, the United States is lagging badly. Through September, the United Stats had granted permanent status to only 90 Syrian refugees, according to a later story in the Post [Dec. 28]. The administration now says it wants to do more. Aleinikoff also urges that refugees be given training in the camps along with opportunities to develop productive communities  for example, through farming. Donor countries support such initiatives, Aleinikoff says, but host countries, fearful of the impact on jobs for their own citizens, are “a harder sell.” Whatever the politics may be, the refugees’ plight cries out for attention, even as the conflicts that they fled continue with no resolutions in sight.

Sunday, December 15, 2013

The past year has been very, very good for marriage equality for gay and lesbian couples in the United States. In a 13-month period (November through November), the number of states recognizing marriage rights for same-sex couples more than doubled from six (plus the District of Columbia) to 16; the number of people living in marriage equality states more than tripled from about 35 million to 118 million.
But hold the applause. Despite that progress for gay rights supporters, somewhat more than 60 percent of Americans still live in states where same-sex couples cannot marry. And the barriers to marriage equality in almost all of those 34 states are formidable. All but a few have Republican-controlled legislatures and Republican governors, and the Republican Party has yet to get the memo that most Americans now support marriage rights for gay and lesbian couples.
In addition, most of those states have constitutional amendments defining marriage as “one man and one woman,” provisions that cannot be repealed by simple legislation. Voters approved most of those anti-gay measures in the decade from the mid-1990s through 2004 while gay marriage supporters were focusing mostly on court cases.
Gay marriage was terra incognita for the voters at that time. As of November 2004, Adam and Steve could get married in only one state: Massachusetts. It was easy for anti-gay groups to depict this uncharted terrain as hostile to traditional marriage, unhealthy for children, and unsettling for public morality. Through 2004, all the amendments but one (Oregon’s) won approval with more than 60 percent of the votes cast.
Since Massachusetts, gay marriage supporters have turned to and succeeded in the political sphere. Along with the District of Columbia, 12 states have decided to allow same-sex marriages by legislation, not by judicial fiat. That number includes Maine, Maryland, and Washington, where voters last year rejected referenda aimed at overturning the legislative enactments. And it includes five more states that enacted same-sex marriage legislation since November 2012: Minnesota, Rhode Island, Delaware, Hawaii, and Illinois.
The political route, however, appears now to be, if not at a dead end, at the start of a steep incline. So attention turns to the courts, which yielded two of the state victories in the past year. Most significantly, the Supreme Court in late June greenlighted gay marriage in California by leaving on the books a lower federal court decision that struck down the state’s anti-gay marriage initiative Proposition 8 (Hollingsworth v. Perry).
On the same day, the court struck down the federal Defense of Marriage Act (DOMA), which barred federal marriage-based benefits to same-sex couples even if legally married in their home states. The ruling in United States v. Windsor provided the basis for a New Jersey trial-level court three months later to strike down the state’s ban on same-sex marriage. The court reasoned that New Jersey’s law, by denying federal benefits to same-sex couples, violated the state constitution’s own equal protection requirements. Advised that the New Jersey Supreme Court would likely affirm the decision, Gov. Chris Christie decided the state would not appeal.
Gay marriage supporters sense another possible victory in New Mexico, where the state supreme court heard arguments on the issue on Oct. 23. News accounts viewed the questions from the justices as favoring the gay marriage advocates. Meanwhile, marriage equality supporters in Oregon say they have enough signatures to qualify a proposal to repeal the state’s gay marriage ban for the November 2014 ballot.
Meanwhile, federal court suits are pending in 17 states, including Oregon, aimed at judicially overturning gay marriage bans, according to a compilation by the national advocacy group Freedom to Marry. One other federal court suit, in Tennessee, is limited to seeking to force the state to recognize same-sex marriages from other states. These suits are pending in federal courts in some of the reddest of the red states, such as Arkansas, Mississippi, Oklahoma, and South Carolina. A comparable suit is pending in state court in Colorado. Some suits are far along—notably, those in Nevada and Michigan; others have just been filed.
In all of these cases, the Supreme Court’s decision in Windsor is potentially powerful support for gay marriage advocates. Admittedly, Justice Anthony M. Kennedy took care in his opinion for the 5-4 majority to acknowledge the states’ “unquestioned authority” over marriage law. In the critical passages, however, Kennedy said that the federal government’s refusal to recognize same-sex marriages places those couples “in an unstable position,” burdens their lives “in visible and public ways,” and “humiliates tens of thousands of children now being raised by same-sex couples.”
Suppose, for a moment, that you are a federal judge, with those passages before you, trying to write a decision upholding a state’s ban on same-sex marriages. What arguments are still open to you? Harm to traditional marriage? Harm to children? Harm to society? In the first cases after Massachusetts, state high courts in New York and Washington accepted those arguments, in closely divided decisions. Now, almost a decade later, they fail, by experience as well as logic.
Opponents of gay marriage are losing in the court of public opinion and being pushed back in political forums. With so many suits pending, federal courts may not all agree. But the arc of history is bending toward marriage equality. And the Supreme Court’s ultimate role in this litigation may only be to ratify a consensus that Americans have already accepted.

Sunday, December 8, 2013

Nelson Mandela, who died last week [Dec. 5] at age 95, transformed not only the political landscape of his beloved country, but also its legal system. Under apartheid, law was an instrument of racist, rights-denying repression. Today, thanks in part to the law-trained Mandela, South Africa’s constitution and its court system showcase the powerful role that law can play in protecting liberty and justice for all.
The system of racial separation and oppression known to the world by the Afrikaans term apartheid was erected only in mid-20th century. Racial segregation and discrimination date from Dutch colonial times, yes, and were tightened piece by piece by the Union of South Africa in the first half of the 20th century. But the white supremacist National Party used law to erect a more thoroughgoing system after it came to power in 1948.
Over the next five years, South Africa’s Parliament enacted piece by piece the legal pillars of “grand apartheid.” The Population Registration Act of 1950 formalized racial classification and required race-designating identity cards for all adults. The Group Areas Act of 1950 allotted living areas by race. The Bantu Authorities Act of 1951 set the stage for the creation of the “bantustans” as phony homelands for black South Africans. Two years later, the Bantu Education Act established an unequal education system that aimed to consign blacks to lifetimes as laborers
Along the way, Parliament forbade interracial marriages (1949) and interracial sexual relations (1950). And the Suppression of Communism Act of 1950 banned any political party that subscribed to communism, which was defined so broadly as to gag opposition to apartheid as disruptive to racial harmony.
Apartheid might have been turned back in infancy but for the National Party’s success in disenfranchising multiracial “colored” voters, a foul deed accomplished despite the resistance of the country’s highest court. (Blacks and Asians had no voting rights.) The Separate Representation of Voters Act of 1951 removed coloreds from the common voters roll in Cape Province, but four voters backed by the United Party challenged it in court.
The Appeal Court ruled the law invalid because Parliament had enacted it without the two-thirds majority required to change so-called “entrenched” clauses in the constitution. Parliament responded by enacting a law allowing it to overrule decisions of the Appeal Court. The Appeal Court ruled that measure invalid as well, but the National Party countered by increasing the court from five to 11 members and then packing it with pro-Nationalist judges. A temporarily enlarged Parliament re-enacted the law in 1956. Originally, coloreds were at least allotted four seats in Parliament, but those were abolished in 1969.
The courts were obliging instruments of repression for the next four decades  as exemplified by the famous Rivonia trial, where Mandela received his life prison sentence in 1965. Mandela’s release in 1990 set the stage for his election four years later as the first president of the multiracial, democratic Republic of South Africa.
With the help of a panel of professional judges, Mandela chose the 11 members of the newly established Constitutional Court of South Africa. The court was predominantly white but with three blacks and one Asian, and the white judges included Arthur Chaskalson, Mandela’s former lawyer, and other human rights veterans. As presiding judge, Chaskalson proclaimed the court’s obedience not to Parliament but to the constitution. “For the first time, the constitution trumps Parliament,” Chaskalson declared, according to the Washington Post’s account.
Not quite four months later, the Constitutional Court abolished the death penalty. The court declared in the ruling that capital punishment was inconsistent with the rights to life and dignity enshrined in the nation’s new constitution, given the arbitrariness of its imposition and the risk of error and the lack of any proven deterrence.
Since that time, the Constitutional Court has continued to issue landmark, rights-expanding decisions. The court followed its capital punishment decision with a ruling in 2001 that barred extradition of suspects from South Africa to a country where they might be subject to the death penalty.
The court in 2000 ruled that the government must provide housing relief to people living in intolerable or crisis situations. Three years later, it ruled that rights to land under customary law must be recognized and that communities dispossessed of land owned under customary law are entitled to restitution.
Along with other protections in its Bill of Rights, South Africa’s new constitution represented an important milestone for LGBT rights as the first national charter to prohibit discrimination on the basis of sexual orientation. The Constitutional Court gave that provision substance with its ruling in 2005 by recognizing marriage rights for same-sex couples; the court gave Parliament 12 months to enact legislation, stipulating that any law be “truly and manifestly respectful of the dignity of same-sex couples.” Parliament passed conforming legislation in November 2006.
South Africa faces immense problems as it enters its third decade as a multiracial democracy: poverty, crime, and growing impatience among the black majority about persistent economic inequality. Yet Mandela’s insistence on the rule of law appears to have survived more than a decade after he relinquished office, according to John Campbell, a senior fellow for Africa policy studies at the Council on Foreign Relations. Human rights are protected, he writes in a blog post, freedom of speech absolute  at least for now. “These are major democratic achievements,” Campbell concludes, “and they owe much to Nelson Mandela's vision for his beloved country.”

Sunday, December 1, 2013

When Justice Potter Stewart provided a critical vote in the Supreme Court’s decision to strike down capital punishment in 1972, he wrote that the death penalty, as then administered, was “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Four years later, Stewart provided a critical vote in reinstating capital punishment as long as courts held separate penalty hearings and defendants could present any possible evidence of “mitigating factors” for juries to consider.
Despite the implementation of those Supreme Court-ordered reforms, critics say the death penalty is still, 30 years later, as arbitrary as a lightning strike. But in one state, Alabama, one source of the arbitrariness is plainly visible: politically elected judges who condemn defendants to death after juries have recommended life prison sentences instead.
Only three states permit judges to override jury sentencing decisions not to impose the death penalty in capital cases at all  Delaware and Florida are the others  but only in Alabama are judges routinely exercising that power now. Of the 199 inmates now on Alabama’s death row, 42 are there because judges imposed death sentences in the face of jurors’ decisions to spare the defendants’ lives. No judge in Delaware or Florida has done so since 1999; a fourth state that once permitted death sentences by judicial overrides, Indiana, changed its law and took that power away from judges.
The Supreme Court upheld Alabama’s law in a 1995 decision, Harris v. Alabama. Justice Sonia Sotomayor drew attention to the practice last month [Nov. 18] in an opinion calling on the court to reconsider that decision. Along with Justice Stephen G. Breyer, Sotomayor dissented when the court declined to take up a new case, Woodward v. Alabama, challenging the practice.
As Sotomayor explained, Alabama is now “a clear outlier” among the 32 states that allow the death penalty. Juries have a role in 31 of the state death-penalty schemes (all but Montana), and they have a final say in all but three.
Florida had been the leader in judicial override death sentences in the 1980s with 89 in the decade, but the number dwindled to 26 in the 1990s until the practice disappeared after 1999. Indiana never had more than one such case per year; Delaware has had only such case ever, and that judicially imposed death sentence was eventually reduced to life imprisonment. But the practice continues in Alabama: 30 judicial override death sentences in the 1980s, 44 in the ’90s, and 26 since 2000, an average of two a year.
Sotomayor believes the reason for Alabama judges’ death-dealing inclinations is simple: politics. Judges are elected in partisan races in Alabama; Florida holds nonpartisan judicial elections, while judges are appointed by the governor in Delaware. Alabama judges, Sotomayor writes, “appear to have succumbed to electoral pressures.” She noted that one Alabama judge, who has overridden jury verdicts to impose the death penalty six times, ran a campaign advertisement naming some of the defendants he had had sentenced to death; in at least one of the cases, the judge overrode the jury’s contrary judgment.
Sotomayor relied heavily in her opinion on a report by the Equal Justice Initiative, the Montgomery, Ala.-based public interest law firm. Its 32-page report, “The Death Penalty in Alabama: Judge Override,” made the point more forcefully, in part by citing statistics to indicate that death sentences by judicial overrides in Alabama peak in election years. “Because judicial candidates frequently campaign on their support and enthusiasm for capital punishment,” the report states, “political pressure injects unfairness and arbitrariness into override decisions.”
The report indicates that political pressure does not run the other way. In only nine cases have Alabama judges overridden jury recommendations to impose the death penalty in favor of a life sentence instead. And Alabama judges do not impose death sentences only after closely divided jury votes; in more than a dozen cases, judges sentenced defendants to death after jurors voted unanimously for life sentences.
In her opinion, Sotomayor also argued that the judicial override practice in Alabama runs afoul of the Supreme Court’s line of precedents  the so-called Apprendi cases  requiring jury instead of judicial fact-finding to raise a defendant’s sentence above the statutory minimum. (Breyer, a dissenter from those decisions, did not join that part of Sotomayor’s opinion.) As Sotomayor detailed, the judge in the case under review sentenced Mario Woodward to death for the killing of a Montgomery police officer after rejecting the jury’s 8-4 finding of mitigating factors based on Woodward’s abused childhood and his good relationship with his five children. Under Apprendi, Sotomayor wrote, “a sentencing scheme that permits such a result is constitutionally suspect.”
Justices use dissents from cert denials in part to highlight issues for possible later consideration. It takes only four votes to grant certiorari, so one question about Woodward’s case is why the other liberal justices  Ruth Bader Ginsburg and Elena Kagan  failed to join Sotomayor’s opinion. Perhaps they thought the case a poor vehicle to raise the issue: the mitigating factors in Woodward’s favor do appear somewhat flimsy. Or perhaps they feared that the liberal bloc could not persuade Justice Anthony M. Kennedy to provide a fifth vote against Alabama’s judicial override practice, at least not now. Still, Sotomayor laid out a strong case that Alabama’s lightning-strike death penalty system deserves “a fresh look.”

Sunday, November 24, 2013

The Senate Democrats’ decision to abolish the filibuster for presidential appointments except to the Supreme Court cannot be understood without remembering that Democrats played nice back in 2005 and were getting nothing in return from Republicans in 2013.
Forget the back-and-forth charges of situational hypocrisy. For Democrats, the issue was simple: fool me once, shame on you; fool me twice, shame on me.
Democrats held 45 seats in the U.S. Senate in 2005, the first year of President George W. Bush’s second term. That was more than enough to have filibustered any of Bush’s nominees for federal courts under the then-existing 60-vote requirement to cut off debate.
Admittedly, Democrats had played judicial hard ball in Bush’s first term. John G. Roberts Jr. won confirmation to the D.C. Circuit two years after his nomination and only after Republicans gained control of the Senate after the 2002 elections. And, in the minority, Democrats successfully filibustered Bush’s nomination of Miguel Estrada to the same court.
Republicans, with a fortified 55-vote majority in 2005, threatened to exercise the so-called “nuclear option” to change Senate rules to allow a simple majority to close debate on judicial nominations. In response, an unusual bipartisan coalition of seven Democrats and seven Republicans  the so-called Gang of 14  promised out of “mutual respect and confidence” to allow votes on judicial nominees except in “extraordinary circumstances.”
The Gang of 14’s deal specifically allowed votes on three of Bush’s pending nominees: Janice Rogers Brown (D.C. Circuit), Priscilla Owen (5th Circuit), and William Pryor (11th Circuit). Confirmed with acquiescence from Democrats, all three have proven themselves to be solidly conservative in their judicial decisions.
Today, Democrats hold a 55-seat majority with Republicans in the minority. The Gang of 14 has dissolved. Four of the moderate Republicans are gone, replaced by three Democrats and a Democratic-caucusing independent. Only three of the GOP senators remain: Susan Collins of Maine, Lindsey Graham of South Carolina, and John McCain of Arizona.
Gone too is any sense of bipartisanship in the Senate’s Republican caucus  or any sense of limits on the use of the minority’s power to thwart President Obama’s appointment powers. In Obama’s first term, GOP filibusters effectively shut down the National Labor Relations Board and the newly created Consumer Financial Protection Board; Obama circumvented the tactic in January 2012 by filling the posts with recess appointments.
GOP filibusters also blocked two of Obama’s first-term nominees for federal appeals courts: Goodwin Liu for the Ninth Circuit and Caitlin Halligan for the D.C. Circuit. In those nominations, Republicans at least made the pretense, however unconvincing, of criticizing Liu and Halligan for their legal views.
Over the past two weeks, however, Senate Republicans took the obstructionist tactic to a new low by blocking votes on Obama’s nominees to fill three vacancies on the D.C. Circuit. The nominees’ qualifications are beyond question: Patricia Millett, former assistant solicitor general and now a big-firm partner; Cornelia (Nina) Pillard, Georgetown law professor and successful Supreme Court advocate; and Robert Wilkins, sitting federal judge and former criminal defense lawyer. Only Pillard could be criticized in the slightest as outside some mythical legal mainstream.
Republicans argued instead that the D.C. Circuit had no need to fill the three vacancies  a concern they never raised when Bush named four to the court. The real motive was blatantly partisan: they wanted to leave in place the existing balance between four Republican and four Democratic appointees. In fact, the court is not balanced: the six senior judges, all of whom continue to hear cases, include five Republicans and only one Democratic appointee. And none of the Democratic appointees is as far to the left ideologically as several of the Republicans are to the right.
In three successive Senate votes, only two Republicans  Collins of Maine and Alaska’s Lisa Murkowski  crossed party lines to close debate and allow up-or-down votes on the nominations. McCain and Graham, Gang of 14 alumni, reneged on the 2005 deal, as well as their more recent comments supporting the right of a president to get a Senate vote on his nominees.
With no hints of greater bipartisanship from the GOP minority in the future, Senate Majority Leader Harry Reid of Nevada decided his patience was exhausted. He brought all but three Democrats along with him in the final 52-48 votes [Nov. 21] that changed the Senate rules to allow a simple majority to give the Senate’s “advice and consent” to a president’s nominees except for the Supreme Court.
Republicans view the exception as hypocrisy: Democrats, they say, are reserving the right to filibuster a future Republican president’s nomination of an anti-choice justice. But the exception is less important than it looks. Only one Supreme Court nominee has been successfully filibustered in modern times: President Lyndon Johnson’s nomination of Abe Fortas to be chief justice in 1968. Democrats had the votes to filibuster Clarence Thomas in 1991 or Samuel A. Alito Jr. in 2006, but they were unwilling to pay the political cost of vetoing the president’s choices on ideological grounds.
For now, the change matters mostly to Washington insiders: only one-fourth of Americans even knew about the now discarded 60-vote requirement. Senate Minority Leader Mitch McConnell of Kentucky complained Democrats were exercising “raw power.” And so they were: the power constitutionally entrusted to a Senate majority.

Sunday, November 17, 2013

Worldwide Widget looks like a hot stock. The company makes a cutting-edge product in a growing market. All the best-known analysts are saying “buy.” So you buy a big chunk of WW stock for your portfolio.
Two days later, however, Worldwide admits that the company’s books have been cooked for years: revenues grossly exaggerated and known risks of liability concealed. The stock price dives; a rebound seems unlikely. You sell as fast as you can and take a big loss.
Worldwide’s “material misrepresentations” amount to securities fraud, and federal law allows you to sue the company for your stock losses. But there’s a catch: fraud cases require plaintiffs to show that they relied on the misstatements at issue. You never read Worldwide’s deceptive 10-K filings. You just put your faith in the market: the rising stock price and recommendations from experts who were reading the 10-K filings.
Strictly applied, the requirement to prove reliance would leave you and most other investors out of luck. But 25 years ago the Supreme Court adopted a solution for the innocently duped investors: the fraud-on-the-market theory. Under this theory, accepted by economists and courts in the 1980s, all investors can be presumed to have relied on fraudulent misrepresentations when they purchase stock at a price distorted by the misrepresentations.
The Supreme Court’s precedent-setting decision in Basic Inc. v. Levinson (1988) ushered in the modern securities fraud class action. Business interests criticized it at the time and have kept up the attacks ever since. Now, the Supreme Court’s conservative bloc has set the stage for possibly erasing it from the law books.
The justices agreed last week [Nov. 15] to hear a case, Halliburton Co. v. EPJ Fund, Inc., 13-317, in which a securities-fraud defendant, backed by the U.S. Chamber of Commerce, is urging the court to overrule or substantially modify the Basic decision. The ruling, lawyers for the Chamber argue in a friend-of-the-court brief, leads to “frivolous strike suits” that “bring more harm than benefits to shareholders.”
Four of the Roberts Court conservatives  Scalia, Kennedy, Thomas, and Alito  signaled their disquiet with the ruling in separate opinions in an unrelated securities case earlier this year, Amgen, Inc. v. Connecticut Retirement Plans. Troublingly for supporters of the 4-2 decision in Basic, the justices in the majority  Brennan, Marshall, Blackmun, and Stevens  are no longer on the court. (White and O’Connor dissented; Rehnquist, Scalia, and Kennedy did not participate.)
To be sure, securities-fraud class actions provide only rough justice, if that, for the victims of accounting shenanigans and outright deceptions engaged in by too many stock-issuing companies. A big chunk of any awards or settlements typically go to the lawyers who put the lawsuits together. For various reasons, some shareholders who deserve compensation do not get it, and others are compensated even though they might not deserve it.
In addition, as Georgetown law professor and securities law expert Donald Langevort has written, the defendant companies foot the bill for about 30 percent of the payouts in such cases  to the detriment of existing shareholders, who have done nothing wrong. Insurance picks up about two-thirds of the costs, while individual defendants  the company officials who actually did something wrong  escape virtually scot-free.
Realistically, however, private class actions are needed to help police the securities markets. The Securities and Exchange Commission (SEC) lacks the resources to pursue all the securities fraud cases that come to light, and business interests that criticize private securities fraud suits are not leading a campaign to increase the agency’s budget. It is also ironic that the kind of people who advocate privatizing such core government functions as education, prisons, and transportation fail to see the benefits of private enforcement of securities laws.
Writing for the majority in Basic, Justice Harry A. Blackmun explained that modern securities markets, with “millions of shares changing hands daily,” differ from the kind of face-to-face transactions contemplated in typical fraud cases. “An investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price,” Blackmun wrote. That presumption, he explained, is based on “considerations of fairness, public policy, and probability.”
The critics see instead, as the Chamber’s lawyers put it, an “unrealistic” economic theory and an “unworkable” legal standard. It is curious to hear business groups and political conservative that glorify the market in other settings argue that stock exchanges are not the “efficient marketplace” that the fraud-on-the-market theory presumes them to be. And the “unworkable” standard under Basic would be even harder to manage if individual investors had to prove specifically that they relied on the allegedly fraudulent misrepresentations in their stock transactions.
In the new case, the investment fund for the Archdiocese of Milwaukee is accusing Halliburton, the big oilfield services company, of misleading the stock market by minimizing its potential liability in asbestos cases, overstating revenue from construction contracts, and exaggerating the potential benefits of a pending merger. The company says those alleged misstatements did not actually affect the price  a defense that would still be available if the suit is allowed to proceed. But a decision to overrule Basic would gut this case and many others. Business interests would benefit, but individual investors in many cases would be left holding an empty bag.

Monday, November 11, 2013

Susan Galloway, who is Jewish, and Linda Stephens, an atheist, felt “marginalized” when they had to sit through Christian prayers at the start of meetings of their town board in Greece, N.Y. They complained, but the town supervisor saw no need to change. And at the next meeting the prayer-giver even went out of his way to criticize those who objected to the practice as an “ignorant minority.”
In reality, the ignorant shoe is on the other feet. The town supervisor and many of the Christian pastors who delivered the opening prayers for the town board were oblivious to the point of ignorance of the limits that Supreme Court precedents and the American tradition of religious freedom place on government-sponsored prayer.
The arguments from Greece, a midsized suburb of Rochester, reached the U.S. Supreme Court earlier this month [Nov. 6]. The case, Town of Greece v. Galloway, found the justices at least as divided as the townfolk about the use of prayers to open local governmental meetings.
From one side, Justice Antonin Scalia found the practice not only unobjectionable but even necessary to accommodate the religious rights of the legislators themselves. If citizen legislators invoke the deity before eating, Scalia suggested, they should also be allowed to invoke it before they undertake “a serious governmental task such as enacting laws or ordinances.”
From the other, Justice Elena Kagan worried that the practice runs afoul of an American principle of equality before the law. “When we relate to our government,” Kagan said, “we all do so as Americans, and not as Jews and not as Christians and not as nonbelievers.”
The constitutional argument begins with the text of the First Amendment, which commands that Congress pass no law “respecting an establishment of religion, or prohibiting the free exercise thereof.” The use of prayers to open governmental proceedings sits uncomfortably with that text. But prayer advocates note that the same Congress that sent that amendment to the states for ratification also approved the hiring of a Senate chaplain to open its sessions.
The unbroken, 220-year history of paid congressional chaplains is the strongest argument made by the town and the many religious and politically conservative groups supporting it. Over time, a majority of state legislatures followed suit, including Nebraska in the mid-19th century.
Contrary to the suggestion of the historical argument, the practice was not without controversy. James Madison, the main author of the First Amendment, later regretted his vote as a member of the House of Representatives in approving the paid congressional chaplains. Occasional controversies emerged through the years, and one  from Nebraska  finally reached the Supreme Court early in the 1980s.
In Marsh v. Chambers (1983), Nebraska state senator Ernie Chambers objected on Establishment Clause grounds to the paid chaplain for the unicameral legislature. By a 6-3 vote, the court found no constitutional bar to the practice. Relying exclusively on history, the court found that the practice had become “part of the fabric of our society” and was “simply a tolerable acknowledgment of beliefs widely held among the people of this country.”
Tellingly, the court did not cite the conditions laid out a decade earlier in the so-called Lemon test for judging Establishment Clause cases. In that case, Lemon v. Kurtzman (1971), the court said that government action regarding religion can pass Establishment Clause muster only if has a secular purpose, does not have a primary effect of advancing or inhibiting religion, and does not entangle government wit religion. But the court did note that the Nebraska chaplain, Robert Palmer, described his prayers as “nonsectarian” and that he removed references to Christ after 1980 after a Jewish legislator had complained.
When Greece’s town supervisor decided to institute opening prayers at board meetings in 1999  replacing the previous, uncontroversial practice of a moment of silence  many of the pastors chosen for the honor had no such inhibitions. In the Supreme Court arguments, Kagan quoted to the town’s lawyer, Thomas Hungar, one of the prayers from the town’s meetings with extended explicit references to Christian beliefs. Would that be an acceptable way to open a Supreme Court session, she asked. “I don’t think so,” Hungar replied.
Under pressure from Scalia, Hungar later backtracked from his concession, but his instinct was correct. Sectarian Christian prayers cross a line that the Establishment Clause requires, even if viewed through a historical lens. As University of Virginia law professor Lois Laycock pointed out in his argument on Galloway’s behalf, the 18th century congressional chaplains did not use their government-provided pulpits to address the divisive theological issues of the day, such as predestination. In a country with increased religious diversity today, the need for prayers to strike ecumenical themes is all the greater.
Some of the justices  notably, Anthony M. Kennedy  seemed to recoil at the notion of government officials editing prayers. But the court itself in Marsh set out two conditions for legislative chaplains: prayers must not proselytize nor advance or disparage any specific religion. As Laycock noted, courts must have the default responsibility to enforce those lines. The justices may be tempted to keep the court out of this controversy, but only the courts can protect the religious liberties of religious minorities when they are ignored by the religious majority.

Sunday, November 3, 2013

Opponents of Michigan’s voter-approved ban on
racial preferences in public college and university admissions had an uphill
fight in persuading the U.S. Supreme Court to strike it down. But it appears that
the Michigan
group that has fought the initiative tooth-and-nail for eight years may have weakened
its slim chance of victory by playing the race card on game day in front of the
justices.

Thanks to reporting by
Tony Mauro of National Law Journal, it is now known why the
provocatively entitled Coalition to Defend Affirmative Action, Integration and Immigrant Rights
and Fight for Equality By Any Means Necessary made a last-minute switch in the
lawyer to argue the case at the Supreme Court. George Washington, the white
lawyer who had argued the case before the federal appeals court in Cincinnati, was swapped on
the eve of the Oct. 15 argument for Shanta Driver, his African American law
partner and fellow leader of the group.

Mauro reports that
Washington and Driver both “mooted” the case  that is, rehearsed their
arguments before panels of lawyers and law professors  in the week before the Oct. 15
arguments. Washington
had been listed as the coalition’s attorney on the “hearing list” released by
the court on Sept. 28 in advance of its October calendar. But the court was
notified on Oct. 14 Columbus Day, a legal
holiday  that
it would be Driver instead.

As Mauro notes, it is rare 
one might say unheard of 
to change lawyers in a
Supreme Court case at such a late date. And, on paper at least, Washington appears to
have better credentials than Driver for the assignment. Both are HarvardCollege
graduates, but Washington went to HarvardLawSchool
and was first admitted to the bar in 1973. Driver is a 2003 graduate of WayneStateUniversityLawSchool. Washington has a 6.5 rating from the
lawyer-rating service Avvo; Driver is unrated.

Why then the switch? Driver
herself disclosed the reason in a post-argument pep rally to the coalition’s supporters
brought to Washington
for a demonstration outside the court. The comments were recorded and posted on
YouTube, where Mauro discovered them last week. It was important to have a
black lawyer for the case, Driver explained, because only one black lawyer
argued before the court in the preceding term: 11 minutes, she elaborated, out
of 1,800 minutes of argument time altogether.

Driver’s information was
correct, as first reported by the Associated Press. The only black lawyer to
argue before the court during the 2012-2013 term was Debo P. Adegbile, counsel with the NAACP Legal
Defense Fund, who shared argument time with the government in unsuccessfully
defending the constitutionality of the Voting Rights Act. But Adegbile, an
experienced appellate advocate, acquitted himself well in the argument. Driver,
in the estimation of court watchers who attended the Oct. 15 argument, did not.

Supreme Court advocates carefully
rehearse their opening sentence, knowing that they may be interrupted before
getting to the next. Driver opened by asking the court to restore the
Fourteenth Amendment to its “original purpose”  to wit, “to protect minority rights against a
white majority.” Justice Antonin Scalia forcefully interrupted to say that the
court’s precedents now hold that the Fourteenth Amendment protects all persons.

When
Driver held to her point, Scalia asked the predictable question: “Do you have
any case of ours that propounds that view of the Fourteenth Amendment, that it
protects only minorities? Any case?” And to that question Driver had no answer:
“No case of yours,” she said.

Off
to a terrible start, Driver’s argument did not get much better. She had no
direct answer to one question from Justice Samuel A. Alito Jr., prompting both
Alito and later Justice Anthony M. Kennedy to chide her for not being
responsive. When Chief Justice John G. Roberts Jr. joined the questioning, he
easily put Driver into a logical bind, prompting Scalia to accuse her of
contradicting herself. For the coalition, the best moment in Driver’s argument
came when Justice Sonia Sotomayor summarized her position. “You restated it very
well,” Driver replied.

Outside
afterward, Driver gladly accepted the crowd’s cheered assessment that she “did
well.” “I did great,” she said, even as reporters preparing to write their
stories inside were shaking their heads at the poor performance. In recapping
the session for the crowd, she dismissed Scalia’s gotcha question as “yada,
yada, yada.”

Driver
went on to say that it was important for someone “from the movement” to have
made the argument to “help bring the left wing to life . . . make them assert
themselves.” Apparently, Driver had missed the point of all the advance stories
about the case  that
it was Kennedy, not the liberal justices, who held the key to any hopes the
coalition might have to strike down the Michigan
initiative.

Driver
came to the Supreme Court argument with a two-decade history of organizing and
demonstrating in the streets  back as far as disrupting a meeting of the University of California Board
of Regents in 1995. She is quoted repeatedly in news coverage about the
initiative  from
signature gathering in 2005 up to the present  with rhetoric that is strident and
confrontational. There is a place for that, of course, but one place where it
does not help and is very likely to hurt is the lawyer’s lectern at the Supreme
Court.

Monday, October 28, 2013

It has been just over a year since Mamana Bibi was blown to bits by a Hellfire missile fired from a pilotless U.S. aircraft while she was picking okra in the family field near the village of Ghundi Kala in Pakistan’s northwest frontier region. Four of Bibi’s young grandchildren saw and felt the impact of the explosion; two suffered shrapnel injuries. A three-year-old grandson was seriously injured when he was thrown from the roof of the family home by the force of the blast.
The U.S. drone attack near Ghundi Kala on Oct. 24, 2012, appears to have gone unreported in U.S. media until Amnesty International used it to open its new report, “Will I Be Next? U.S. Drone Strikes in Pakistan.” The report was released last week [Oct. 22] in conjunction with a parallel report by Human Rights Watch on U.S. drone warfare in Yemen: “Between a Drone and al-Qaeda.”
Together, the two reports, dissecting a dozen of the hundreds of drone attacks in the past four years, provide a powerful corrective to the antiseptic picture of U.S. drone warfare that emerges from the limited information about the attacks given out by the government. They refute the anodyne assurances from President Obama and others that the government is exercising extreme care to target attacks accurately and minimize collateral damage to innocent victims or property. And they present a strong case that the United States is violating not only Obama’s stated guidelines but also international law.
Drone warfare appeals because it allows the United States to take out bad guys from al Qaeda without ever putting Americans in harm’s way. U.S. military or CIA technicians, safe in a command center in the United States, supposedly guide the remote-controlled aircraft into position over the identified target and hit the launch button only after taking precautions against collateral damage to innocent victims or property.
That is not what it looks like on the ground, according to the disturbing images and accounts gathered by researchers from the two human rights groups from witnesses, survivors and Yemeni and Pakistani officials. Beyond doubt, many of the victims were innocent bystanders. Bibi, a 68-year-old grandmother, was one; so too were the youngsters among the 18 killed when missiles rained down on a group of laborers in the village of Zowi Sidgi in July 2012. In an especially poignant example, previously reported, Salim bin Ahmed Ali Jaber, an anti-al Qaeda cleric in Yemen, was killed on Aug. 29, 2012, along with three al Qaeda operatives who had set up a meeting with him to challenge his positions.
Human Rights Watch counts 82 deaths from the six drone attacks in Yemen it studied, including 57 civilians  more than two-thirds of the total. The group cites an estimate that puts the total death toll in Yemen at 473, civilians and combatants lumped together. Amnesty International relays estimates from other non-governmental organizations and from Pakistani sources that put the civilian death toll in Pakistan since 2004 somewhere between 400 and 900. If true, the number appears far larger than the number of deaths of al Qaeda combatants suggested by U.S. government accounts.
The civilian casualties are an inherent risk from the fog of war, the reports suggest. Bibi may have been mistargeted in an attack aimed at a Taliban fighter who had been located nearby but drove away before the missiles were fired. Zowi Sidgi appears to be in a corridor for Taliban fighters, but villagers interviewed afterward insisted that most if not all of the victims had nothing to do with the Taliban. From afar, Jaber’s innocent reasons for meeting with al Qaeda fighters were unknowable.
Even apart from the unknowables, however, the reports fault the United States for violating rules established by international law and in some cases incorporated by Obama in the reset of drone policy he outlined in a speech at the National Defense University in May. Obama said the United States prefers capture to targeted killing whenever feasible. In Yemen, Human Rights Watch argues that lethal force is barred in any event in the absence of an armed conflict with al Qaeda in the Arabian Peninsula and that targeted suspects could have been captured in at least two of the attacks studied. Obama says the United States goes after individuals only if they present an imminent threat to the United States; both groups say some of the targets appear not to qualify under that criterion.
More generally, both groups fault the administration for failing to provide a clear legal rationale for the drone attacks, for releasing so little information about the attacks, and for failing to ensure compensation for innocent victims or their families. And both reports emphasize that opposition to the drone attacks is widespread in Pakistan and Yemen; the ill will created may outweigh any benefits from the attacks in terms of counterterrorism policies.
Elders from Ghundi Kala held a press conference two days after the attack that killed Bibi to protest the drone warfare, but it attracted no news coverage in the United States. The drones are weapons in a war that is largely unseen in the United States. They are terrible in their own way, but out of sight it is easy for the government and the public to grow fond of them.

Sunday, October 20, 2013

“[E]lections for political office at the state or federal level are never decided by just one vote.” Crawford v. Marion County Board of Elections (Posner, J.)

One vote actually can make a difference  even in elections, however rarely  but certainly in judicial decisions. So legal commentators naturally are making much of Judge Richard Posner’s belated apology for his pivotal vote in the seminal federal court decision seven years ago to uphold state voter photo ID laws.
“I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana's requirement that prospective voters prove their identity with a photo ID  a type of law now widely regarded as a means of voter suppression rather than of fraud prevention,” Posner writes in his new book, Reflections on Judging.
Posner’s confession of error, in the midst of the continuing debate over voter photo ID laws, would have earned him a gold star for candor but for his subsequent decision to deflect the blame to the lawyers in the case. The real blame, however, lies not with the lawyers and not even with Posner alone, but with the deferential stance that the Supreme Court itself has taken in reviewing laws that make it hard to vote.
Posner shifted the blame for his vote in an interview on HuffPost Live [Oct. 11] when he said the lawyers challenging the Indiana law failed to show that the photo ID requirement would actually disenfranchise people entitled to vote. “If the lawyers had provided us more information about the abuses,” Posner told interviewer Mike Sacks, “the case would have been decided differently.”
Understandably, the Washington lawyer who argued the case before the Supreme Court is taking exception to Posner’s blame-shifting. Paul Smith, a veteran of voting rights litigation and an experienced Supreme Court advocate, notes on the American Constitution Society’s blog that Indiana’s Republican secretary of state, the law’s chief sponsor, had acknowledged that the photo ID requirement would be “difficult” for many voters, including “elderly voters, indigent voters, voters with disabilities, first-time voters, [and] re-enfranchised ex-felons.”
The lawyers challenging the law also emphasized the political facts of life behind it. The law was enacted in 2005 just after Republicans had gained control of both chambers of the state legislature and the governorship. Every Republican legislator voted for it, and every Democratic lawmaker voted against it. Posner himself acknowledged in his opinion that the potential voters most likely to be burdened by the law were people “low on the economic ladder”  and most likely to be Democratic voters.
Partisanship was also in evidence in the courts’ handling of the case. The district court judge who upheld the law was a Republican appointee, as are Posner and his Seventh Circuit colleague who joined in the decision. The Democratic appointee on the panel, the late Judge Terence Evans, dissented. “Let’s not beat around the bush,” Evans wrote. “The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by folks believed to skew Democratic.”
The partisan divide was muddied somewhat at the Supreme Court, as Justice John Paul Stevens joined with the Republican-appointed conservative bloc in 2008 in upholding the law. Writing for a plurality that also included Chief Justice John G. Roberts and Justice Anthony M. Kennedy, Stevens accepted the state’s purported justifications for the law, including preventing voter fraud, and found the law’s burdens not substantial enough to justify striking it down.
Stevens conceded that Indiana itself had shown no instances of in-person voter impersonation  the only kind of voter fraud that a photo ID can prevent  but claimed that history offered real-life examples. In the most recent instance cited by Stevens, however, an investigation in Washington State of 19 supposed “ghost” voters identified only one instance of in-person impersonation. For three liberal dissenters, Justice David H. Souter argued that the state’s “abstract interests” did not justify the “nontrivial burdens” imposed on would-be voters.
Voter ID laws are now on the books in 34 states and are surviving legal challenges, most recently in a unanimous decision by the Tennessee Supreme Court [Oct. 17]. The Roberts Court’s decision in June that freed southern states from the Voting Rights Act’s preclearance requirement has defanged the Obama administration’s challenges to such laws in South Carolina and Texas. The plurality in the Indiana case left the door open to future legal challenges, but none is likely to succeed unless judges gets serious about requiring states to justify laws that inevitably impede the ostensibly sacred right to vote.
The court’s precedents require states to show the precise interest to be served by any voting eligibility requirements and to weigh that interest against the resulting limitations on the right to vote. In his decision in the Indiana case, however, Posner was notably blasé about the limitations. Even “slight costs in time or bother or out-of-pocket expenses” may deter “many people” from voting, he wrote, but with no great concern. The benefits of voting to the individual voter,” Posner opined, “are elusive.”
The right to vote deserves better than that  from Posner and, all the more, from the Supreme Court. “Every vote counts,” voters are regularly told on the eve of elections  and so too every vote that is not counted because never cast. In future voting rights cases, the Supreme Court needs to try to make that slogan actual reality and not just a platitude.

Sunday, October 13, 2013

When the Akron, Ohio, city council enacted a fair housing ordinance in 1968, opponents drafted and won voter approval of a charter amendment prohibiting adoption of any such law unless approved by a majority of voters. The Supreme Court cried foul. With only one justice dissenting, the court held in Hunter v. Erickson (1969) that the Equal Protection Clause prohibits a change in the political process that imposes “special burdens on racial and religious minorities . . . by making it more difficult for them to secure legislation on their behalf.”
A decade later, voters in Washington state approved a ballot measure, Initiative 350, that effectively prohibited school districts from using busing for purposes of racial integration while allowing it for any of several other educational policies. Again, the court cried foul, this time by a 5-4 vote. For the majority, Justice Harry A. Blackmun wrote in Washington v. Seattle School Dist. No. 1 (1982) that the initiative “creates a constitutionally-suspect racial classification and radically restructures the political process,” amounting to “a major reordering of the state’s educational decisionmaking process.”
Together, the cases establish what is called the political restructuring doctrine, a rule unfamiliar even to many legal experts because so rarely invoked. But the federal appeals court in Cincinnati invoked it last year in striking down a Michigan ballot measure that bars racial preferences in state and local government policies, including admissions at public colleges and universities.
The state has appealed that decision to the Supreme Court, which is set to hear arguments in the case this week [Oct. 15]. Supreme Court handicappers are predicting that the decision in Schuette v. Coalition to Defend Affirmative Action will significantly limit or possibly even overturn a doctrine that, however infrequently used, is viewed by traditional civil rights groups as a logical and necessary part of equal protection law.
Michigan became one of the major battlegrounds in the war over race-conscious admissions policies in the late 1990s. The anti-racial preference group Center for Individual Rights filed separate challenges against admissions policies at the University of Michigan’s flagship undergraduate college in Ann Arbor and the university’s law school. In separate cases, the Supreme Court upheld the limited use of race in the law school’s admissions policies (Grutter v. Bollinger) but ruled out the substantial numerical preferences for minority applicants at the undergraduate college (Gratz v. Bollinger).
Taking its cue from Grutter, the university revamped undergraduate admissions policies to allow the use of race as one among other factors. Opponents responded by qualifying what they entitled the Michigan Civil Rights Initiative for the statewide ballot in November 2006. The measure prohibits discrimination or “preferential treatment” in public employment, government contracts, or public education on the basis of race, sex, color, ethnicity, or national origin. The measure won approval with 58 percent of the vote: two-thirds of white voters voted for it; 90 percent of black voters voted no.
Complex litigation that spanned six years culminated in a fiercely fought, 8-7 decision by the full Sixth U.S. Circuit Court of Appeals in November 2012 striking down the measure. Opponents argued that the measure imposed a political burden on advocates of race-based preferences not imposed on supporters of other admissions preferences, for example for children of wealthy donors or alumni. The measure “undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change,” the majority wrote.
In appealing that decision to the Supreme Court, the state’s attorney general, Bill Schuette, depicts the initiative as an unexceptional guarantee of civil rights. “It is curious to say that a law that bars discriminating on the basis of race or sex violates the Equal Protection Clause by discriminating on the basis of race or sex,” the brief filed by Schuette’s office states.
Mark Rosenbaum, legal director for the American Civil Liberties Union of Southern California and attorney for one set of plaintiffs in the case, calls that depiction of the initiative misleading. The initiative’s prohibition against discrimination is gratuitous, he notes, since it is already illegal for state or local governments to discriminate on the basis of race or the other factors. The effect of the initiative, Rosenbaum stresses, is to prohibit race-conscious admissions policies that would be lawful under Grutter and to set up an effectively insurmountable political obstacle for advocates of such policies.
Rosenbaum emphasizes that the case is not about affirmative action as such, but the opposing briefs by Schuette and by the pro-affirmative action coalition rehash the debate over race-conscious admissions at length and with heat. The conservative majority on the Roberts Court are no great fans of affirmative action, and the five justices are not seen as likely fans of the political restructuring doctrine either. Tellingly, Justice Anthony M. Kennedy did not rely on it in the opinion he wrote in Romer v. Evans (1996) striking down an analogous anti-gay rights initiative in Colorado.
The Michigan measure is a verbatim copy of a California ballot initiative, Proposition 209, adopted in 1996 and upheld by the Ninth U.S. Circuit Court of Appeals. The Supreme Court left that ruling standing. Supporters of race-based admissions policies fear  and their opponents hope  that a Supreme Court ruling to reinstate the Michigan measure will encourage other states to follow suit in prohibiting racial preferences in university admissions. That could be a decisive turning point in a war that traditional civil rights groups already seem to be losing.

Sunday, October 6, 2013

The Roberts Court has yet to meet a campaign finance law that it likes. In eight years under Chief Justice John G. Roberts Jr., the court has issued six decisions striking down provisions of federal or state campaign finance laws. And the court’s conservative majority seems set to strike down another provision of federal campaign finance law as it opens its new term this week.
At issue in McCutcheon v. Federal Election Commission [argument: Oct. 8] is a provision that limits the total amount of money an individual can give to congressional candidates or political committees in a two-year election cycle. Currently, the so-called aggregate contribution limit is set at $48,600 to candidates and $74,600 to political party committees.
Shaun McCutcheon, chief executive of an electronics engineering firm in Hoover, Ala., wanted to exceed those limits in the 2012 congressional elections. He planned to donate the symbolic amount of $1,776 to 27 congressional candidates who shared his interest in limiting government and to give another $25,000 to each of the three national Republican political committees. But his plan ran afoul of the overall contribution limits, which date back to the post-Watergate Federal Election Campaign Amendments of 1976.
McCutcheon has teamed up with the Republican National Committee (RNC) in a federal court suit in Washington challenging the limits as an infringement of his political speech rights. He says he has no problem with the so-called base limits on the amount an individual can give to any individual candidate  currently, $2,600 in a primary election and another $2,600 in the general election. But he says it makes no sense to allow him to write checks to 17 congressional candidates and then to draw a line at the eighteenth.
A three-judge court headed by one of the D.C. Circuit’s staunchest conservatives, Janice Rogers Brown, nevertheless upheld the provision. Brown noted in the decision that the Supreme Court upheld contribution limits in its seminal case, Buckley v. Valeo (1976), on the ground that they helped prevent corruption or the appearance of corruption. The aggregate contribution limits, Brown reasoned for the unanimous panel, help prevent circumvention of the base limits. Without the aggregate limits, she explained, an individual could write a half-million dollar check to a joint fundraising committee and the party committees could then funnel the money through untraceable informal arrangements to a single candidate  just as the donor intended. Up till now, the Supreme Court has stuck with its decision in Buckley to strike down limits on individual campaign spending but to uphold contribution limits. But conservative critics are more and more forthright these days in attacking the contribution limits as unconstitutional. In the current case, McCutcheon is asking only to strike down aggregate limits, but the RNC wants the court to reconsider Buckley and subject all contribution limits to likely fatal strict scrutiny.
Three justices  Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas  have written in other cases that they are open to reconsidering that aspect of Buckley. Roberts and Justice Samuel A. Alito Jr. have yet to express view on the issue, but the court’s campaign finance decisions have gone in only one direction since Roberts and Alito joined the court in the 2005-2006 term.
Before Roberts, the court in 2003 upheld the Bipartisan Campaign Reform Act (BCRA) by a 5-4 vote, with Alito’s predecessor, Sandra Day O’Connor, joining the court’s liberal bloc in the majority. In their first full term on the court, however, Roberts and Alito provided the critical votes in a decision that gutted the BCRA provision limiting so-called corporate-financed issue ads on television during campaign seasons (FEC v. Wisconsin Right to Life, 2007).
The same 5-4 majority formed in 2008 to strike down BCRA’s so-called “millionaire’s amendment” (Davis v. FEC) and in 2010 to throw out limits on campaign spending by corporations and labor unions (Citizens United v. FEC). The Roberts Court has also thrown out Vermont’s low campaign contribution limits (Randall v. Sorrell, 2006) and an Arizona law aimed at helping publicly financed candidates running against self-financed opponents (Arizona Free Enterprise Club v. Bennett, 2011). And last year the court struck down Montana’s attempt to re-enact limits on corporate spending in the face of the Citizens United ruling (American Tradition Partnership v. Bullock, 2012).
Federal or state laws start with a presumption of constitutionality, but Supreme Court handicappers appear to be unanimous in predicting that the court will strike down the aggregate limits. The government cites the Watergate scandals to justify the limits; the brief recalls the dairy industry’s seven-figure contribution to the Nixon re-election committee in a blatant (and successful) effort to get Nixon to back an increase in milk price supports.
Without the aggregate limits, the government argues, an individual could contribute $3 million or more in a single election cycle and the country would return to the bad old days. Bradley Smith, a leading critic of campaign finance law as former FEC chair and law professor at Capital University Law School in Columbus, Ohio, scoffs. “A zombie apocalypse,” he calls it, as quoted in USA Today.
In Citizens United, the Roberts Court majority made clear it has no qualms about setting corporations free to spend freely on political campaigns. All signs suggest those five justices are likely to have no qualms about unleashing McCutcheon and other well-heeled contributors as well.

Sunday, September 29, 2013

For the past two Supreme Court terms, the justices waited until their last day to issue rulings in the year’s most closely watched cases: the challenges to the Affordable Care Act last year and the Defense of Marriage Act (DOMA) this year. In both cases, Solicitor General Donald Verrilli personally argued for the government, and in both cases the court ruled for the government  admittedly, by one-vote margins in both.
With a record like that, one would expect Verrilli to be hailed as the Mariano Rivera of Supreme Court advocacy: he closes well in the most important contests. But instead Verrilli has been getting bad notices in the world of Supreme Court watchers.
For the past two terms, the government  read: the Obama administration  has been getting its clock cleaned at the Supreme Court. According to a compilation by UCLA law professor Adam Winkler, the government was winning fewer than 40 percent of its cases at the Supreme Court as the justices were about to close their term in June. With four late cases added to Winkler’s count as published in The Daily Beast, the final record for the term is 11 wins and 17 losses – a 39 percent record.
The government was also faring badly this term, according to Winkler, in cases where it participated as a non-party “friend of the court.” Once again combining Winkler’s count with the late-decided cases, the court ruled in favor of the government’s amicus positions in 13 cases and against its view in 17  about a 43 percent record. Both of those figures are below the government’s historic batting average before the Supreme Court, according to Winkler. And Winkler says the government also lost “an unusually high number” of cases in the previous term.
The results are somewhat unsurprising, given the clash between a liberal Democratic administration and a conservative court controlled by five Republican appointees. But some court watchers grumble that Verrillii himself bears part of the blame.
In the courtroom, Verrilli suffers in comparison to his recent predecessors, including Elena Kagan, now a justice herself, and Paul Clement, now in private practice and the universally acclaimed best Supreme Court advocate of the past few years. To this courtroom observer, Verrilli comes off in comparison to those two and some other predecessors as softer spoken, not so amiable, less comfortable with attempted witticisms, and slower with effective retorts to skeptical questions from the bench.
Despite any shortcomings at the lectern, Verrilli had a good win-loss record in the eight cases that he personally argued during the previous term. The court sided with the government in five, ruled against the government in two, and issued a no-decision of sorts in the other. A re-reading of the transcripts of those arguments shows Verrilli, at least in hindsight, to have been reasonably effective in setting out the government’s positions while fending off skeptical questions from one side of the bench or the other.
Those losses came in cases that the Obama administration was fated to lose before the Roberts Court. In Shelby County v. Holder, Verrilli had no chance to persuade any of the court’s five conservatives to hold off from striking down part of the Voting Rights Act. Appearing as friend of the court in the affirmative action case, Fisher v. University of Texas, Verrilli similarly faced an uphill fight in urging the court to uphold UT’s race-conscious admissions policies. Still, Verrrilli’s defense of the limited use of race in admissions may have influenced the court’s final ruling to allow the practice but under stricter judicial scrutiny.
From an opposite perspective, Verrrilli had no problem in Clapper v. Amnesty International in getting the five conservatives to reject the attempted constitutional challenge to the government’s post-9/11 warrantless wiretapping of electronic communications overseas. And the government also was the early favorite in the jurisdictional dispute in City of Arlington v. FCC even though Chief Justice John G. Roberts Jr. and two conservative colleagues ended up dissenting.
In two other victories, Verrrilli argued nuanced government positions. In Association for Molecular Pathology v. Myriad Genetics, the court unanimously adopted the government’s precise position to bar patents for isolated human genes but allow patents for DNA synthesized in the laboratory. In the earlier case, Kiobel v. Royal Dutch Petroleum, the court agreed with the government to bar the suit by Nigerian nationals for the oil companies’ alleged complicity in human rights violations but adopted a stricter jurisdictional limitation than Verrrilli had presented.
Verrilli and the administration deserve undoubted credit for its paradoxical victory in the DOMA case. The court’s 5-4 decision in United States v. Windsor vindicates the administration’s controversial decision two years ago to stop defending the law. Verrilli also urged the court to strike down California’s gay-marriage ban, Proposition 8. But during oral argument he said under questioning that the appeal should be dismissed for lack of standing  just as the court ultimately decided (Hollingsworth v. Perry).
A year earlier, Verrilli had been openly criticized and even mocked for what was seen as a fumbling defense of the Affordable Care Act. Yet the court upheld the law after Roberts accepted the tax power argument that Verrilli had insisted on keeping in the government’s briefs, according to Josh Blackman’s account of the case in his book Unprecedented. So court watchers may need to be cautious in grading Verrrilli’s arguments at least until the court has issued the only grade that matters.

Monday, September 23, 2013

When an Amish farmer claimed religious objections to paying Social Security taxes for his employees back in the 1980s, the Supreme Court had little difficulty in ruling against him. “When followers of a particular sect enter into commercial activity as a matter of choice,” Chief Justice Warren E. Burger wrote for a unanimous court in United States v. Lee (1982), “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity.”
Three decades later, the same issue is before the Supreme Court, but in a very different political context. The government program at issue in the current cases is not Social Security  a long established and popular success  but one provision in President Obama’s Affordable Care Act, which is new and unpopular. And the religious belief at issue is not the idiosyncratic Amish opposition to government assistance, but the widely shared opposition among religious conservatives to contraception, especially the so-called Plan B emergency contraceptive, which some view as a drug to induce an abortion.
The legal context has also changed. Under a law passed by Congress in 1993  the Religious Freedom Restoration Act (RFRA)  the federal government cannot abridge a person’s free exercise of religion except to serve a compelling government interest in the least restrictive manner possible  the so-called “strict scrutiny” test.
Despite the change in law, however, make no mistake: the cases that reached the court last week are politically driven and the outcome as likely as not to be determined by political as much as by legal considerations. Congress had sound reasons to require employers to include free coverage of contraceptives in their employee health plans. Those reasons would satisfy the strict-scrutiny test but for the political opposition to the Affordable Care Act found not only among politicians and the public but also within the federal judiciary, including at the Supreme Court.
The two cases before the court both involve companies formed as closely held corporations by families whose members are opposed to abortion and to emergency contraception on religious grounds. The Mennonite Kahn family in Lancaster County, Pa., own a woodworking company, Conestoga Wood Specialities, with about 950 employees. David Green and his family, evangelical Christians, own (through a trust arrangement) the Oklahoma-based Hobby Lobby Stores, a chain of some 500 arts and crafts marts with 13,000 employees all told.
The corporate status of the two companies raises a preliminary but potentially determinative issue that has divided the federal courts of appeals to rule on these cases so far: Does a secular, for-profit corporation have a constitutionally protected right to free exercise of religion? In the Conestoga case, the Third U.S. Circuit Court of Appeals said no. The free exercise right is “purely personal,” the court ruled in a 2-1 decision. The Sixth Circuit agreed in a decision issued last week [Sept. 17]. In the Hobby Lobby case, however, the Tenth U.S. Circuit Court of Appeals cited precedents recognizing free-exercise rights for churches organized as corporations and found no basis for treating for-profit corporations differently.
The government and the administration’s supporters in the legal blogosphere are investing a lot of capital on this issue. Corporations, they note, do not enjoy all of the protections listed in the Bill of Rights. A corporation, for example, has no Fifth Amendment privilege against self-incrimination. But the five justices who found a broad right of political speech for corporations in the Citizens United case may see no reason not to recognize a corporation’s right to religious expression as well, especially since all five have been sensitive to free exercise claims in other contexts.
So the administration needs to invest equally in defending the contraception mandate on the merits if the court agrees to hear the case (as seems likely) after considering the separate petitions filed by Conestoga and by the government in the Hobby Lobby case. And on the merits the Supreme Court’s reasoning in rejecting the Amish farmer’s case 30 years ago directly applies to the current issue.
The tax system could not function, Burger wrote, if people could challenge it because tax payments were spent in a manner that violated their religious beliefs. Given the importance of maintaining a sound tax system, he concluded, “religious belief in conflict with the payment of taxes affords no basis for resisting the tax.”
In enacting the Affordable Care Act, Congress and the president decided that the government has a strong interest as well in a health care system that, among other things, ensures adequate insurance coverage for preventive services, including contraception. Increased access to contraceptive services is important, the government argues in the Hobby Lobby case, because lack of contraceptive use can have “negative health consequences for both women and children.” The government also has a separate interest in ensuring equal access to health care for women, who pay more than men out of pocket for health care.
Accommodating the Kahns, the Greens, and others like them would deny the employees of their companies the benefits of this government policy. It would also invite other exceptions, the government notes  for example, religious-based objections to immunizations. These are strong legal arguments, but they may not be enough for the five Roberts Court justices who have already shown themselves to be deeply skeptical of the Affordable Care Act’s major premises.

Sunday, September 15, 2013

Supreme Court Justice Anthony M. Kennedy was at his most serious and most earnest as the keynote speaker at the annual meeting of the American Bar Association (ABA) in San Francisco last month [Aug. 10]. Greeting his audience as “fellow adherents to the rule of law,” Kennedy devoted the first half of a 26-minute speech to the national crisis in prison crowding before turning in the second half to the importance of civic education for young people.
Kennedy had all the usual statistics about overincarceration in the United States: 2.1 million prisoners nationwide, including 160,000 in his home state of California  an imprisonment rate seven times greater than in England, France, or Germany. But he quoted as well from the Gospels  “I was in prison and ye came unto me”  to stress the bar’s responsibility to address the crisis. Despite the prisoner’s offense, Kennedy concluded, “he or she is part of the family of humankind.”
Kennedy was, if anything, even more didactic as he talked about instilling in young people a proper appreciation for “the meaning of freedom and its history.” “You cannot preserve what you have not studied,” the one-time constitutional law professor said. “You cannot protect what you do not comprehend. You cannot defend what you do not know.”
Some in the press corps have been known to roll their eyes as Kennedy waxes lyrical in his speeches. His conservative critics  including his fellow justice, Antonin Scalia  sneer more pointedly when Kennedy veers into grandiloquence in his opinion. As one example, they cite Kennedy’s opening paean to the “transcendent dimensions” of individual liberty in his opinion for the court in Lawrence v. Texas (2003) striking down laws against gay sex.
But make no mistake: Kennedy’s tendencies toward pomposity are nothing to be trifled with. Today, after a quarter-century on the court, Kennedy is clearly its most powerful individual member. Year after year, he is the justice with the fewest number of dissenting votes. “It’s the Roberts Court,” NBC’s Supreme Court correspondent remarked in his end-of-term wrap-up in June. “But Anthony Kennedy is the president and chief executive officer.”
Kennedy is in fact more powerful than his former swing-vote colleague, Sandra Day O’Connor, who was given the title of “most influential justice” in Joan Biskupic’s biography a few years back. O’Connor’s tendency was to cast her often decisive vote in favor of splitting the difference between opposing views. Kennedy, by contrast, comes down hard on one side or the other: no muddled compromises in his majority opinions in closely divided decisions. Instead, as in Lawrence, Kennedy sets out explicit holdings, black-letter law for judges to follow with little of the case-by-case weighing that O’Connor often favored.
As a result, Kennedy’s judicial legacy is of real, unmistakable consequence. And he has made his mark in areas that one might not have expected.
Gay rights is the most recent and most obvious example. Kennedy authored the 5-4 decision in June, United States v. Windsor, that struck down the federal Defense of Marriage Act (DOMA), which barred marriage-based benefits to married gay and lesbian couples. He also wrote the court’s two previous gay rights landmarks: Lawrence and the earlier decision, Romer v. Evans (1996), that struck down a Colorado initiative barring the enactment of anti-gay discrimination laws.
Gay rights advocates opposed Kennedy when he was nominated to the court in 1987, noting that he had ruled against gay rights plaintiffs in five cases while on the federal appeals court in California. With a keener eye, they might have recognized a gay rights supporter waiting to come out. In the first of the cases, Beller v. Middendorf (1981), Kennedy upheld the military’s policy of discharging homosexuals but only after acknowledging that “the choice to engage in homosexual action” might be “a fundamental right” entitled to “full protection as an aspect of the individual’s right to privacy.”
Kennedy has also made his mark on sentencing issues. He has been the pivotal vote in a series of decisions beginning in 2002 that bar the death penalty for mentally retarded defendants, for juveniles, or in child rape cases. Kennedy also wrote the 2010 decision barring life without parole sentences for juveniles in non-homicide cases and led the follow-on decision to bar mandatory life without parole terms for juvenile murderers.
As the court’s most consistent First Amendment supporter, Kennedy can also take credit for the string of rulings under Chief Justice John G. Roberts Jr. generally backing freedom of speech. Indeed, according to insider accounts, it was Kennedy who prevailed on Roberts in the campaign finance case, Citizens United v. Federal Election Commission (2010), to turn a narrow ruling into a broad guarantee of political speech rights for corporations.
On the bench as in his writing, Kennedy is always in earnest. Other justices engage in an occasional joke or witticism, but Kennedy hardly ever if at all. He came to the court as a safe choice after the Senate rejected the combative conservative, Robert Bork, as outside the mainstream. Instinctively mild of manner, Kennedy might have been expected to recede to the background. Instead, with the court about to begin a new term, he once again is the justice that lawyers focus on as they fashion their arguments and the justice that court watchers watch as they handicap the term’s cases.

Sunday, September 8, 2013

As long ago as the mid-19th century, the British philosopher and uber-ethicist John Stuart Mill saw the need for a doctrine of humanitarian intervention in international law. It was “grave error,” Mill wrote, to assume that the same doctrine of non-intervention applicable to civilized nations also applies in relations between “civilized nations” and “barbarians.”
Mill’s formulation provided a convenient rationalization for British and French imperialism and for the United States’ turn-of-the-century war of conquest against Spain. But a doctrine can be misused without being wrong. The 20th century’s history of humanitarian violations teaches the need to accept the doctrine as part of customary international law  and for the United States, as the dominant global power, to play its part in putting the doctrine into practice even without formal multilateral support.
On that view, President Obama’s proposed strikes against Syria for its use of chemical weapons in its civil war passes international law muster, notwithstanding the United Nations Charter’s seeming limitations on the use of force. Just as the U.S. Constitution is not a suicide pact, the U.N. Charter cannot be interpreted as a one-sided disarmament pact by civilized nations against modern-day barbarians such as Syria’s Bashar al-Assad.
International law is not the only or the most important issue for Congress to consider as it takes up a proposed resolution authorizing use of military force in Syria. President Obama owes it to members of Congress, not to mention the American public, to use his TV interviews and televised address this week to lay out in detail the evidence supporting the accusation that Assad’s regime launched a chemical weapons attack on Aug. 21 against rebel strongholds in the Damascus suburbs. As part of that evidence dump, the administration should explain its casualty count  1,429 deaths  that is not only implausibly precise but also significantly higher than estimates from other, western sources.
Most important, the administration needs to do a better job than it has thus far of showing that it has a strategy other than teaching Assad a lesson. Without putting boots on the ground, the administration still must show that some number of cruise missile strikes against Syrian military targets, combined with other U.S. actions, help the stated goal of replacing a dictatorial regime with a more representative, more inclusive government. And it needs to show that no other steps  such as economic sanctions or resort to the International Criminal Court, as advocated by New York Times columnist Thomas Friedman  would be effective.
In addressing these issues, however, Congress can rest comfortably with the United States’ obligations toward international law. True, the simplest legal answer for this and other humanitarian crises would be to fall back on the U.N. Charter’s Chapter VII, which permits the use of force when authorized by the Security Council (Article 42) or in individual or collective self-defense (Article 51). Almost 70 years later, however, the U.N. Charter cannot bear the full weight of addressing modern-day humanitarian crises.
The United Nations was founded, after all, by the victorious powers in a world war against nations that were committing both aggression and humanitarian violations on unprecedented scales. The five major powers, allies in that war, were each granted the power to veto any actions by the U.N. Security Council, the enforcement arm created to distinguish the new international organization from the toothless League of Nations.
Wars of aggression have gone almost out of style since then, but genocide has become more common: think Cambodia, Rwanda, Serbia. At the same time, the World War II allies divided first into ideological camps and now into geostrategic rivalries. President Obama is correct to point out that, “for a whole host of reasons,” those divisions leave the Security Council “paralyzed” in many situations. “And yet,” he adds, “we’ve got all these international norms that we’re interested in upholding.”
One of the clearest of those norms is the prohibition against the use of chemical weapons that dates from the Geneva Protocol on Gas Warfare, adopted in 1925. Obama is correct to say that this is the world’s “red line,” not his. Obama’s critics are correct to question his failure to take more decisive action toward Syria up to now. The mistakes of the past, however, will not be corrected by another. The critics are also right to question the precedential effect of the United States’ acting without the formal approval of the Security Council or a regional body such as NATO or the Arab League. Secretary of State John Kerry was right to answer, however, that the Arab League is, for various reasons, as paralyzed as the Security Council and that the United States does have support of individual nations with more direct interests. As for precedents, Rwanda shows the costs of inaction, Kosovo its potential benefits.
The other precedent being established  seeking congressional approval for humanitarian intervention against actions that do not immediately threaten U.S. national security  has benefits as well. The president’s need to make the case to Congress strongly enough to overcome the public’s residual isolationism guards against too-easy resort to a doctrine that, for the good of international law, must be carefully cabined. The coming debates on Capitol Hill will test whether Obama can make that case and whether Congress can judge it, free of partisanship, with an eye to the United States’ interest in a better international order.

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About this Blogger

Kenneth Jost is author of Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and Trending Toward #Justice. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor. He is a contributing writer with CQ Researcher and was a member of the CQ Researcher team that won the 2002 American Bar Association Silver Gavel Award. His articles have appeared in national and legal publications; he also appears as an analyst on national and local radio and television news programs.

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